Revised Statutes of Newfoundland 1990 Chapter R-15

(b) "consumer" means, in relation to a person who acquires tangible personal property, the application by that person of that property, or the intention of that person to apply that property, in the province,

(i) to his or her own consumption or use or to the consumption and use of another person at the expense of the first mentioned person, or

(ii) on behalf of, or as the agent for, a principal, to the consumption or use of the principal or of another person at the expense of that principal;

(d) "contract of insurance" includes a policy, certificate, interim receipt, renewal receipt or writing evidencing a contract of insurance whether sealed or not and a binding oral agreement of insurance;

(e) "fair value" includes

(i) in respect of tangible personal property,

(A) the price for which the tangible personal property was purchased or acquired by the consumer, including the value in Canadian dollars of services rendered, things exchanged, rental and other consideration accepted by the person from whom the property passed as the price or on account of the price, where the tangible personal property was purchased or otherwise acquired by the consumer,

(B) where the tangible personal property was processed, manufactured or fabricated by the consumer, the total cost to the consumer of the tangible personal property as processed, manufactured or fabricated, or

(C) where the tangible personal property was in whole or in part, processed, manufactured or fabricated by another person for a consideration for the consumer who either directly or indirectly provided the materials used, the value in Canadian dollars of the processing, manufacturing or fabrication of the tangible personal property by that other person,

(ii) installation charges payable by the consumer for the installation of tangible personal property which after its installation remains tangible personal property,

(iii) interest, finance charges, or service charges, paid or payable by the consumer, unless the charges are shown separately on a valid bill or invoice of the person from whom the tangible personal property was acquired,

(iv) the transportation charges to the port of entry in the province, or, where the tangible personal property is billed on a through bill of lading to another place in the province, the transportation charges to that other place,

(v) delivery charges or amounts charged by a seller to a retail purchaser, excluding charges by a common carrier, for the delivery or transportation of tangible personal property sold by the seller to that retail purchaser,

(vi) customs and excise duties and sales tax payable to the Crown in right of Canada, and

(vii) the tax on tobacco imposed by the Tobacco Tax Act,

whether or not those items are shown on the invoice or on the books of the person from whom the tangible personal property passed, where it was purchased or otherwise acquired by the consumer;

(f) "insurance" means an undertaking by a person

(i) to indemnify another person against loss or liability for loss with respect to a certain risk or peril in the province to which the object of insurance may be exposed, or

(ii) to pay a sum of money or thing of value upon the happening of a certain event in the province;

(g) "insurer" means a person who undertakes or agrees or offers to undertake a contract of insurance;

(h) "insurer's agent" includes an insurer who maintains a place of business in the province and a representative of an insurer in the province;

(i) "minister" means the Minister of Finance;

(j) "person" includes the Crown and each municipality, town council or rural district council, the board of trustees of a local improvement district and a council, board, commission or authority established under an Act of the Legislature;

(k) "policy" means the instrument evidencing a contract of insurance;

(l) "premium" means the single or periodic payment under a contract of insurance for the insurance and includes dues, assessments and other consideration;

(m) "promotional distribution" means the provision by a person to others of tangible personal property that is, in the opinion of the minister, provided for 1 or more of the following purposes:

(i) to describe, or to promote or encourage the purchase, consumption or use of, goods, wares, services or property,

(ii) to provide or distribute to a person a catalogue, directory, listing or compilation of persons, places, prices, services, commodities or places of business in respect of the purchase, consumption or use of tangible personal property,

(iii) for a purpose, function or use prescribed to be promotional distribution;

(n) "promotional distributor" means a person who is a resident of, or carries on business in the province or who intends to live or carry on business in the province and who, by way of promotional distribution, provides to a person in the province tangible personal property the full fair value of or the purchase price of which is not specified charged to, and required to be paid by, the person to whom the tangible personal property is provided;

(o) "purchase price" includes the value in Canadian dollars of the consideration, whether money, goods, services rendered, rental or other consideration for which the tangible personal property was acquired at a retail sale, and includes the cost of processing, manufacturing or fabrication, the interest, charges, duties, taxes and costs as referred to in clause (e)(i)(C), subparagraphs (e)(ii), (iii), (iv), (v), (vi) and (vii);

(p) "retail purchaser" means a person who by a sale acquires tangible personal property not for resale but as a consumer and includes also a promotional distributor to the extent that the full fair value of or the purchase price of goods provided by way of promotional distribution exceeds a payment specifically made by the person to whom the goods are so provided;

(q) "retail sale" means a sale to a retail purchaser;

(r) "return" includes information obtained under this Act or the regulations from the records of a seller or taxpayer, or from a 3rd party where the information relates to the seller or taxpayer;

(s) "sale" means a sale for cash or on credit or a sale where the price is payable by instalments and includes

(i) a barter or exchange,

(ii) a sale under which possession of the thing that is the subject of the sale is or is to be delivered to a buyer and the title to the subject of the sale is to be vested in the buyer at a later time on payment of the whole or part of the price or on the performance of another condition,

(iii) the taking of possession, by means of foreclosure, conditional sales contract or otherwise, of a thing that is held as security, by a person who immediately before the creation of the security had not consumed or used that thing,

(iv) the provision by way of promotional distribution of tangible personal property,

(v) another contract by which for consideration a person gives title, conditionally or otherwise, to a thing, to another person;

(t) "seller" means a person who in the ordinary course of business sells tangible personal property at a retail sale in the province;

(u) "tangible personal property" means personal property that can be seen, weighed, measured, felt or touched or that is in another way perceptible to the senses and includes electricity, natural gas and manufactured gas;

(v) "tax" means the tax imposed by this Act and includes penalties and interest that are added to the tax under this Act; and

(w) "taxpayer" means a person who is liable to pay money by way of tax under this Act.

1978 c36 s2; 1980 c22 s4; 1982 c65 s1; 1983 c77 s1; 1987 c36 s1

PART I
RETAIL SALES
Back to Top Tax

3. A person who acquires tangible personal property at a retail sale in the province shall, in respect of the consumption or use of that property, pay to the Crown at the time of the sale a tax at the rate of 12% of the purchase price of the property so acquired.

1978 c36 s3; 1982 c21 s1

4. Irrespective of whether tangible personal property acquired at a retail sale in the province is new or used, the tax payable under section 3 shall be based on the full purchase price of that property whether or not a tax was paid under this Act on a previous retail sale of that property.

1978 c36 s4

5. Notwithstanding section 4, where a person who acquires tangible personal property at a retail sale turns in to the seller or to another person selling at a retail sale, as part or full payment of the purchase price of the property being acquired, other tangible personal property on which he or she has paid a tax under this Act or in respect of which he or she is under this section or the regulations not liable to pay tax, that person shall pay the tax on the difference between the purchase price of the property being acquired and the value allowed by the seller or other person on the property turned in to him or her.

1978 c36 s5

6. Where a person undertakes the construction, repair or improvement of real property

(a) that person is considered to be the consumer of the tangible personal property consumed or used in the construction, repair or improvement and is liable to pay the tax on the fair value of the tangible personal property; and

(b) the rate of tax shall be the rate applying at the date the tangible personal property is consumed or used in the construction, repair or improvement under the contract.

1978 c36 s6; 1983 c77 s2

7. (1) The tax imposed by this Act shall be calculated separately on every retail sale and shall be rounded to the nearest cent with fractions of 1/2 being counted as 1 cent.

(2) Where on the same occasion or as part of 1 transaction, several items of tangible personal property are purchased, the total of the purchases shall be considered to have been made at 1 retail sale for the purposes of this Act.

1978 c36 s7

8. Where the minister is of the opinion

(a) that the purchase price charged at a retail sale is not the true value of the tangible personal property sold there; or

(b) that the rental or other consideration charged under a contract for the hire or lease of tangible personal property to which section 13 applies is not the true value of the hire or lease,

the minister may determine the true value, and the value so determined shall be taken for the purposes of assessing the tax under this Act.

1978 c36 s8

9. (1) In this section "movable residential home" means a fabricated family habitation that is wholly constructed, away from the site on which it is intended to be used, for moving to that site in not more than 4 separate parts irrespective of whether it is intended to be later permanently affixed to the site or left standing on the site.

(2) Notwithstanding section 3, in respect of a person who purchases a movable residential home for himself or herself as a consumer, the rate of tax to be paid on it shall be based on 1/2 of the purchase price of the movable residential home instead of its full purchase price.

1978 c36 s9

10. Where tangible personal property is sold on credit at a retail sale, whether conditional or otherwise, the retail purchaser is assessable on the whole amount of the contract price and the tax shall be imposed when the retail sale is made.

1978 c36 s10

11. Where tax has been paid in respect of the consumption or use of tangible personal property purchased at a retail sale and, within 1 year from the date that the tax became payable, the tangible personal property is returned to the seller, a refund of the tax shall be paid to the retail purchaser, proportionate to the amount of the purchase price that the retail purchaser is entitled to have refunded to him or her by the seller when the property is returned to the seller.

1978 c36 s11

12. A person who sells tangible personal property at a retail sale to a person who alleges that he or she is not purchasing the property for consumption or use shall collect the tax from the person purchasing the property; but the minister shall, upon proof to his or her satisfaction that the person was not a retail purchaser, refund the tax collected to the person purchasing the property.

1978 c36 s12

13. (1) A person who receives delivery of tangible personal property for his or her consumption or use under a written or oral contract, for the hire or lease of the property by that person, that is not a sale, shall in respect of the consumption or use of that property, pay to the Crown a tax of 12% of the rental or other consideration payable by him or her in respect of the hire or leasing of that property.

(2) The tax imposed by subsection (1) shall be collected, and this Act and the regulations shall be applied for the purposes of the imposition, assessment, collection and enforcement of the payment of that tax, as if

(a) the right of the hirer or lessee to consume or use the tangible personal property under the contract were tangible personal property; and

(b) there were, on each occasion when the hirer or lessee became obliged to pay a rental or other consideration, a retail sale at which the hirer or lessee was the retail purchaser, the person letting the property was the seller and the rental or other consideration was the purchase price.

(3) Notwithstanding section 32, where the retail sale is a contract for the letting of tangible personal property under which it is agreed that the hirer or lessee has an option to become the owner of that property, the tax shall be paid

(a) on the consideration to be paid for the hiring of the property, as the consideration falls due; and

(b) on the consideration to be paid for becoming the owner of the property, as soon as the option is exercised, whether or not the consideration is then payable,

but consideration referred to in paragraph (a) on which the tax has been paid shall not for the purposes of this section be included in the consideration referred to in paragraph (b).

(4) In this section the expression "rental or other consideration" includes optional payments made in respect of the hire or lease of tangible property for the use, service, protection, upkeep, warranty or other thing incidental or related to the property.

1978 c36 s13; 1982 c21 s3

14. (1) A person shall pay to the Crown a tax at the rate of 12% of the service rate, that is to say, the total amount charged to him or her by a public utility for or in connection with

(a) the use of a utility system and the connection to it; or

(b) the sending of a communication by a utility system.

(a) the matter for which the service rate was charged were tangible personal property; and

(b) there were, on each occasion when the person became obliged to pay the service rate, a retail sale at which that person was the retail purchaser, the public utility was the seller and the service rate was the purchase price.

(3) Where, in relation to the utility system of a public utility, the person receiving the use of the system or sending a communication by it and the public utility is the same person, that person is liable for and shall pay the tax imposed by subsection (1) on that use or communication as if

(a) the person receiving the use or sending the communication and the public utility were separate persons; and

(b) the service rate were charged to the person receiving the use or sending the communication at the appropriate rate for it.

(4) Where the use of a utility system of a public utility is supplied by the public utility for a communication or other use free of charge or at an unreasonably low cost to a person other than the public utility, the public utility is liable for and shall pay the tax levied by this section on that use or communication as if the public utility had itself been the person receiving the use of the system or sending the communication by it and within the scope of subsection (3).

(5) In this section

(a) "public utility" means a person who owns, operates, manages or controls, for gain, a utility system;

(b) "service rate" means the service rate described in subsection (1); and

(c) "utility system" means equipment or facilities available to a member of the public for the purpose of communication by telephone, teletype, telegraph, microwave, or other equipment or facilities whether of a similar nature to the preceding or not.

1978 c36 s14; 1982 c21 s4

15. (1) A recipient shall pay to the Crown a tax at the rate of 12% of the total amount charged to the recipient for or in connection with the supply to him or her of a taxed service, that is to say,

(a) repairs to and work done on or in connection with tangible personal property other than commercial fishing equipment or farming equipment and excluding work described in paragraph (b);

(b) work ordinarily performed by a dry cleaner, dryer and launderer in the course of his or her business;

(c) the supply of lodgings for periods of less than 30 days at tourist establishments that are or are required to be licensed under the Tourist Establishment Regulations, 1976 and having accommodation for more than 4 paying guests;

(d) the supplying, under a rental, leasing or other agreement for the provision of them, of television reception transmitted by any means;

(e) contracts or agreements for the service, protection, upkeep, warranty or maintenance of tangible personal property,

except the service that has been excluded from the application of this section by the regulations.

(2) Notwithstanding subsection (1), a recipient shall pay to the Crown a tax at the rate of 4% of the total amount, where that total amount is in excess of $19.99, charged to the recipient for or in connection with the supply to him or her of the taxed service known as advertising, except the service that has been excluded from the application of this section by the regulations.

(3) Subsection (2) applies notwithstanding that the taxed service known as advertising is placed 2 or more times by the recipient at a cost for each advertisement that is less than $20.

(4) Subsection (2) does not apply in respect of the taxed service known as advertising placed in a publication of an organization that is

(a) a registered charity for the purposes of the Income Tax Act (Canada); or

(b) considered by the minister to be a non-profit organization.

(5) The tax imposed by subsections (1) and (2) shall be collected, and this Act and the regulations shall be applied for the purposes of the imposition, assessment, collection and enforcement of the payment of that tax, as if

(a) the taxed service were tangible personal property; and

(b) there were, on each occasion when the recipient became obliged to pay the service rate, a retail sale at which the recipient was the retail purchaser, the service supplier was the seller and the service rate was the purchase price.

(6) In this section

(a) "recipient" means a person to whom a service supplier supplies a taxed service;

(b) "service rate" means the total amount charged to the recipient for or in connection with the supply of a taxed service;

(d) "taxed service" means the taxed service described in subsections (1) and (2).

(7) For the purpose of subsection (1) the total amount charged does not include amounts charged for travel, lodging or meals.

1978 c36 s15; 1979 c27 s1; 1979 c51 s27;
1982 c21 s5; 1982 c65 s2; 1988 c20 s1; 1988 c32 s1

16. (1) A person who enters into a contract of insurance with an insurer shall pay to the Crown a tax at the rate of 12% of the premium for that insurance.

(2) The tax imposed by subsection (1) shall be collected and this Act and the regulations applied for the purpose of the imposition, assessment, collection and enforcement of the payment of that tax, as if

(a) the contract of insurance were tangible personal property; and

(b) there were on each occasion when the premium is due, a retail sale in the province at which the person paying the premium was the retail purchaser, the insurer or his or her agent was the seller, and the premium was the purchase price.

(3) Where a contract of insurance relates to risk, peril or events both in the province and outside the province, the tax payable under this Act shall be calculated only upon the portion of the premium relating to the risk, peril or events arising in the province as determined by the minister.

(4) Where tax has been collected or remitted to the minister under subsection (1) and a refund of the whole or part of the premium is made by the insurer or his or her agent within 6 months of the expiration, termination or cancellation of the contract of insurance, the minister or collector shall refund to the person who paid the premium an amount of tax proportionate to the amount of premium refunded.

(5) The collector, when reporting the total amount of tax collected by him or her, may deduct from the tax to be remitted to the minister the amount of tax he or she has refunded under subsection (4).

1987 c36 s2

17. (1) A person living or carrying on business in the province or a person intending to live or carry on business in the province who brings into the province, or receives delivery within the province, of tangible personal property, for consumption or use as a consumer, shall, except as it is otherwise provided in the regulations,

(a) immediately in writing report to the minister the introduction into the province of the tangible personal property;

(b) supply to the minister the invoice and other information required by the minister in respect of the consumption or use of the tangible personal property; and

(2) Where a person referred to in subsection (1) establishes to the satisfaction of the minister that his or her possession of the tangible personal property is under a contract for the hire or lease of the property in respect of which section 13 applies, the person may pay the tax imposed by that section instead of the tax imposed by subsection (1).

(3) For the purposes of subsection (1) a person is carrying on business in the province where an employee or representative of that person is functioning or operating in the province for the purpose of promoting the sale or use of tangible personal property belonging to or in the possession or control of that person.

1978 c36 s16; 1982 c21 s6; 1982 c65 s3

18. A person who consumes or uses tangible personal property originally acquired by him or her at a sale other than a retail sale and in respect of which no tax was paid under this Act shall, as soon as the person applies that tangible personal property to his or her own consumption or use,

(a) report in writing to the minister the consumption or use of the tangible personal property;

(b) supply to the minister information required by him or her in respect of the consumption or use of the tangible personal property; and

(c) in the manner provided by this Act and the regulations, pay to the minister a tax of 12% of the fair value of the tangible personal property consumed or used by that person.

1978 c36 s17; 1982 c21 s7

19. (1) A person shall not dispose of his or her stock through a sale in bulk without first obtaining a certificate in duplicate from the minister

(a) that taxes collectable or payable by that person have been paid; or

(b) that an arrangement satisfactory to the minister has been entered into with that person for the payment of the taxes or for securing their payment.

(2) Where a person purchases the stock of another person through a sale in bulk, the purchaser is, in addition to a liability imposed on him or her by this Act for payment of the tax on stock acquired by the purchaser through that sale, liable also to pay a tax payable under this Act by that other person unless he or she obtains from him or her a copy of the certificate issued by the minister under subsection (1).

(3) Notwithstanding subsections (1) and (2), where a person purchases the stock of another person through a sale in bulk, that person or his or her solicitor shall, upon a demand of the minister, hold back a sufficient amount of money to cover a tax considered to be payable by the previous owner of the stock.

(4) The holdback given under subsection (3) may be in the form of a bond or other suitable instrument as approved by the minister.

(5) The liability of a person who receives a demand from the minister under subsection (3) shall be limited to the amount of the holdback under that subsection.

(6) In this section "sale in bulk" and "stock" have the same meaning as in the Bulk Sales Act.

1978 c36 s18; 1983 c77 s3

20. (1) Where a person, who has not paid a tax under this Act on tangible personal property purchased by him or her at a retail sale because the person was exempt from the tax by reason of the property being intended for consumption or use in, on or for a purpose specified in this Act or another Act or the regulations as being a purpose that makes that person exempt from the payment of that tax, consumes or uses the tangible personal property for a purpose not so specified, that person shall immediately report in writing to the minister the consumption or use of the tangible personal property.

(2) Upon receiving a report under subsection (1), the minister may determine the true value of the tangible personal property reported upon as at the time of the beginning of the consumption or use for the non-exempt purpose and the person consuming or using the property shall pay to the minister 12% of the value of the property as so determined.

1978 c36 s19; 1983 c77 s4

21. Subject to the regulations, the following tangible personal property is exempt from the tax imposed by this Act:

(a) gasoline taxed under another Act of the Legislature;

(b) fuel oil taxed under another Act of the Legislature;

(c) boats, vessels not exceeding 300 tons gross, engines, batteries, fishing nets, bait, fishery salt and other apparatus and supplies, when purchased by genuine commercial fishers or genuine commercial processors of fishery products or by-products for use primarily by the purchaser in the commercial catching or processing of fish, including shellfish, crustaceans and marine animals;

(d) natural water, including ice and water that has been treated for the control of impurities in the interest of public health;

(e) medicines and x-ray pictures and plates, when sold on the prescription of a physician, dentist or veterinarian;

(f) dental and optical appliances when sold on the prescription of a dentist, optometrist or physician;

(g) artificial limbs, orthopaedic appliances or equipment designed solely for the use of

(i) physically disabled or handicapped persons or chronic invalids, or

(ii) persons who may, if the limbs, appliances or equipment were not used, become physically disabled or handicapped persons or chronic invalids, and hearing aids and batteries for hearing aids and dentures, and insulin needles and syringes used by diabetics for the injection of insulin;

(h) tangible personal property sold to the Crown in right of Canada;

(i) tangible personal property shipped by the vendor for delivery outside the province, including ships' stores delivered to commercial vessels that normally operated in extra-territorial waters;

(j) vessels of more than 300 tons gross used for any purpose;

(k) tangible personal property sold at a purchase price of less than $0.26;

(l) seeds, feeds, lime, fertilizer, insecticides, farm equipment and machinery either horsedrawn or propelled by muscular power or otherwise, when purchased by a farmer for use solely in the production of farm crops, livestock or livestock products;

(m) tangible personal property sold or transferred by 1 or more natural persons to a corporation where

(i) the corporation is incorporated at the request of 1 or more natural persons with the principal object of taking over an existing business, trade or occupation previously carried on by him or her,

(ii) the title to the tangible personal property of the existing business, trade or occupation referred to in paragraph (i) is sold or transferred to the corporation by 1 or more natural persons within 1 year after the date of incorporation,

(iii) the consideration for the sale or transfer of the tangible personal property and the other assets that the natural persons may sell or transfer to the corporation is the acquisition by the natural persons of ownership or control of not less than 75% of the issued share capital of the corporation,

(iv) the natural persons, or any of them, retain control of not less than 75% of the issued share capital of the corporation for a period of not less than 2 years from the date of the acquisition referred to in subparagraph (iii), and

(v) upon the sale or transfer of the tangible personal property by the natural persons, the corporation deposits with the minister a sum of money or provides him or her with a security bond or personal sureties for an amount of the tax that would, apart from this paragraph, be payable by the corporation on the tangible personal property so sold or transferred, and the sum of money shall be returned to the corporation, or the bond or sureties shall be discharged upon the minister being satisfied that the conditions for the exemption from the tax as provided in this paragraph have been met; and

(n) tangible personal property that has been exempted from the tax under this Act by the regulations or by another Act.

1978 c36 s20; 1979 c27 s2; 1982 c65 s4;

22. A person in the province to whom tangible personal property is provided by way of promotional distribution is, with respect to the consumption or use of it, exempt from the tax imposed by this Act on the amount by which the full fair value or the purchase price exceeds a payment that is made by that person solely and specifically for the receipt by him or her of the tangible personal property so provided and that is not referable to the purchase, consumption or use by the person of other property.

1983 c77 s5

23. (1) Where

(a) tax has been paid on tangible personal property that is exempt from tax under this Act; or

(b) there has been an overpayment of tax on tangible personal property under this Act,

the minister may, on proof of payment or overpayment satisfactory to him or her, refund the tax or overpayment under the regulations to the person who originally paid it.

(2) A refund of tax need not be paid under this section unless a claim for it has been made by the person entitled to the refund within 3 years from the date of the payment of the tax.

1978 c36 s21; 1982 c65 s5

24. (1) The minister may issue to a person a registration certificate, which is not transferable, authorizing that person to sell tangible personal property by retail sale at the place of business that may be specified in the certificate.

(2) The minister may refuse to issue a registration certificate to a person or may cancel or suspend the registration certificate of a person

(a) where the minister is satisfied or has reason to believe that the person has or will use the certificate to purchase tangible personal property for consumption or use by that person, or has otherwise failed to comply with a requirement of this Act or the regulations; and

(b) who is under the supervision and control of a person

(i) whose certificate has been cancelled or suspended under paragraph (a), or

(ii) who supervised or controlled a person whose certificate has been cancelled or suspended under paragraph (a).

(3) The minister may refuse to issue a registration certificate to a corporation or may cancel or suspend the registration certificate of a corporation unless the corporation sends to the minister a copy of the certificate of incorporation, together with the names and addresses of the officers or directors of the corporation holding office at the time the minister requests the names and addresses of the officers or directors of the corporation.

1978 c36 s22; 1982 c65 s6

25. (1) Where a person proposes to sell tangible personal property by retail sale at 2 or more separate places of business, the person shall obtain a registration certificate in respect of each place.

(2) Where an agent proposes to sell tangible personal property by retail sale on behalf of a principal and the agent does not have a fixed place of business, the agent shall obtain a registration certificate.

1978 c36 s23

26. An application for a registration certificate shall be made to the minister in the form that may be prescribed.

1978 c36 s24

27. (1) A seller who has a fixed place of business in a province shall display his or her registration certificate at a prominent place on the premises in respect of which it was issued.

(2) A seller, whether or not an agent, who has no fixed place of business in the province shall keep his or her registration certificate on his or her person while soliciting or doing business, and the seller shall produce it, upon request, to a retail purchaser or an authorized representative of the minister.

1978 c36 s25

28. (1) A seller shall keep books of account, records and documents showing

(a) the seller's purchases and sales of tangible personal property;

(b) tangible personal property purchased or taken from stock for consumption or use by the seller, or supplied to employees of the seller where the tangible personal property is not sold at a retail sale;

(c) non-assessable sales of tangible personal property, including sales for resale, retail sales that are exempted and sales in respect of which refund of the tax is payable;

(d) assessable retail sales of tangible personal property;

(e) amount of tax collected;

(f) disposal of tax and remuneration retained by the seller; and

(g) other accounts, records and documents that may be designated by the minister,

and shall make returns to the minister in the prescribed manner and at the prescribed times.

(2) The minister may require

(a) different sellers or classes of sellers to keep and preserve different books of accounts, records and documents; and

(b) a seller or class of seller to keep records showing each individual purchase and sale of tangible personal property.

(3) An insurer's agent shall keep full, up-to-date and accurate books of account and records showing

(a) particulars of insurance effected to which the tax imposed by this Act applies together with the names and addresses of persons effecting the insurance and the amount of premiums paid or charged for the insurance;

(b) the date of payment or charging of premiums referred to in paragraph (a); and

1978 c36 s26; 1987 c36 s3

29. A manufacturer, wholesaler, importer, jobber and agent shall keep a record of purchases and sales of tangible personal property made by him or her, whether for consumption or use or resale, and shall make returns to the minister in the form, in the manner and at the times prescribed.

1978 c36 s27

30. (1) Returns made under this Act shall not be made available to a person except persons authorized by the minister to receive them.

(2) The minister may not authorize a person to receive returns made under this Act unless it is necessary to do so for the purposes of this Act.

(3) The minister may

(a) communicate to a person employed by the Government of Canada or of a province information obtained under this Act; or

(b) permit a person employed by the Government of Canada or of a province to inspect or have access to a form, return or statement provided under this Act.

(4) Subsection (3) applies only in those circumstances where

(a) on a reciprocal basis similar information is communicated to the minister by a reciprocating jurisdiction and persons employed by this province may inspect and have access to similar forms, returns and statements under the control of the reciprocating jurisdiction; and

(b) information communicated under subsection (3) and the inspection and access permitted under that subsection will not be used for a purpose other than the administration or enforcement of a law of the reciprocating jurisdiction that provides for the imposition of a tax.

1978 c36 s28

31. A seller who sells tangible personal property in the province or maintains a place of business or has a representative in the province is considered to be an agent of the Crown and as an agent shall levy and collect the tax imposed by this Act from the retail purchaser.

1978 c36 s29

32. The tax, whether the purchase price is stipulated to be payable in cash or on terms or by instalments or otherwise, shall be collected at the time of the sale on the whole amount of the purchase price and shall be remitted by the collector to the minister at the prescribed times and in the prescribed manner.

1978 c36 s30

33. The minister may pay sellers for their services in collecting and forwarding the tax to the minister the remuneration that may be prescribed by the regulations.

1978 c36 s31

34. A person acting under section 31 or a seller receiving remuneration under section 33 is not, because of so acting or receiving remuneration, ineligible to be elected as a member or to sit and vote in the House of Assembly.

1978 c36 s32

35. (1) A person who collects a tax under this Act is considered to hold the tax in trust for the Crown and shall pay over the tax in the manner and at the time provided by this Act and the regulations.

(2) An amount of tax collected and not paid over as required by this Act or the regulations

(a) is recoverable by action in a court as a debt due to the Crown; and

(b) until so paid is a 1st lien on the entire assets of the estate of the person who collected the tax, and has priority over other claims of a person.

1978 c36 s33; 1983 c77 s6

36. (1) The retail purchaser and the consumer are and remain liable for the tax until it has been collected.

(2) Where a seller or another person sells tangible personal property and fails to collect the tax, he or she shall immediately notify the minister; and the tax may be recovered from the retail purchaser or consumer by action in a court as a debt to the Crown.

1978 c36 s34

37. (1) A person who collects a tax under this Act shall be considered to act subject to sections 77 to 80 and section 83 of the Financial Administration Act and for the purposes of those sections the person is a person who has received money on behalf of the Crown.

(2) Amounts received by the minister by way of tax are part of the Consolidated Revenue Fund.

1978 c36 s35

38. (1) The minister may require a seller to deposit with the minister a bond by way of cash or other security satisfactory to the minister in the amount that may be determined by the minister, which shall not be greater than an amount equal to 6 times the amount of the tax estimated by the minister that would normally be collected by the seller each month in compliance with this Act, but in no case shall the deposit be less than $100.

(2) The minister's estimate under subsection (1) is final and conclusive for the purposes of a bond under this section.

(3) Where a seller who has deposited a bond with the minister under subsection (1) fails to collect or remit tax under this Act, the minister may, by giving written notice to the seller by registered mail or personal service, apply the bond in whole or in part to the amount that should have been collected, remitted or paid by the seller as the amount due to the Crown as of the date of the notice.

(4) The use of a remedy provided by subsection (3) does not bar or affect the other remedies provided by this Act or existing by law, nor does it prejudice, limit or affect a lien or priority existing under this Act or otherwise.

1978 c36 s36

39. The Lieutenant-Governor in Council may appoint or designate those inspectors, officers and other persons that he or she considers necessary for the proper carrying out of this Act and the regulations.

1978 c36 s37

40. A person appointed or designated under section 39, in this Act called an "inspector", may, so long as it is reasonably necessary to determine compliance with this Act, at reasonable times, enter upon the business premises of a person or upon the premises where that person's records are kept

(a) to inspect, audit or examine books of account, records, financial statements including balance sheets and profit and loss statements or documents; or

(b) to ascertain the quantities of tangible personal property purchased, on hand, sold, consumed or used by that person, and whether the taxes collected or payable by that person have been remitted or paid to the minister,

and the persons occupying or in charge of the premises shall answer questions concerning those matters and shall produce for inspection those books of account, records, financial statements including balance sheets and profit and loss statements or documents that the inspector may request.

1985 c11 s60

41. (1) Where an inspector believes on reasonable grounds that a person has contravened this Act or the regulations or that a person has in his or her possession tangible personal property in respect of the consumption or use of which the tax payable has not been paid, the inspector may with a warrant issued under subsection (2) enter and search the premises, receptacle, motor vehicle, ship, boat or aircraft where tangible personal property is believed to be situated and to inspect books of account, records, financial statements including balance sheets and profit and loss statements or other documents relating to the tangible personal property and to make those inquiries that are considered necessary.

(2) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there has been a contravention of this Act or the regulations or that there is on a premises, receptacle, motor vehicle, ship, boat or aircraft tangible personal property in respect of the consumption or use of which the tax payable has not been paid may issue a warrant authorizing an inspector named in the warrant, subject to the conditions that may be specified in the warrant, to

(a) enter and search those premises, receptacles, motor vehicles, ships, boats or aircraft;

(b) make copies or abstracts of books or records relating to the tangible personal property that is the subject of the search; and

(c) take away the books or records for the purpose of making copies of them, which books and records shall be returned immediately after copies are made.

(3) The person occupying or in charge of the premises, receptacle, motor vehicle, ship or boat described in subsection (2) shall produce for inspection by the inspector named in the warrant tangible personal property in his or her possession, books of account, records, financial statements including balance sheets and profit and loss statements or other documents relating to the tangible personal property, and answer questions relating to them.

(4) The books or records referred to in subsection (2) shall not include financial statements, balance sheets and profit and loss statements.

1985 c11 s60

42. Where a court, before which a proceeding is taken against an inspector for anything done by him or her under this Act or the regulations, is satisfied that there was probable cause for the action of the inspector, and that the action was not malicious, a verdict or judgment shall not be given against the inspector for more than $0.05 damages or for costs of suit.

1978 c36 s40

43. (1) Where a seller or taxpayer fails to make a return or remittance as required by this Act or the regulations, or the returns of the seller are not substantiated by his or her records, the minister may make an estimate of the amount of the tax collected by the seller or payable by the taxpayer for which he or she has not accounted, and the amount so estimated shall be considered to be the tax collected or payable by him or her.

(2) The seller or taxpayer shall pay the amount estimated under subsection (1) to the Crown.

(3) In addition to making an estimate of the amount of tax collected by the seller or payable by the taxpayer under subsection (1), the minister may make an estimate of the amount of the tax collected by the seller or payable by the taxpayer based on the records of the supplier of the seller or taxpayer in conjunction with the records of the seller or taxpayer.

(4) In subsection (3) "supplier" means a person from whom the seller or taxpayer acquires tangible personal property.

1978 c36 s41; 1982 c65 s8

44. The minister may by written notice either mailed to or served on the seller or taxpayer or his or her heirs, administrators, executors or assigns, or custodian or trustee in bankruptcy, require the seller or taxpayer to pay over to the Crown or otherwise account for the amount estimated under section 43 within 30 days after the date on which the notice is mailed or served.

1978 c36 s42

45. An affidavit by an officer of the Department of Finance sworn or affirmed before a person authorized to take affidavits that a notice given under section 44 has been mailed or served shall be received, in the absence of evidence to the contrary, as proof that the amount stated is owing by the seller or taxpayer.

1985 c11 s35

46. (1) The amount of the tax that is due or that has been collected under this Act may be recovered with costs by action in a court as a debt due to the Crown.

(2) An action under subsection (1) shall be tried without a jury, and the court may make an order as to costs in favour of or against the Crown.

1978 c36 s44

47. (1) Where default is made in the payment of a tax or a part of it that is due or that has been collected on behalf of the Crown under this Act, the minister may issue a certificate stating the amount due and remaining unpaid, and the name of the person by whom it is payable, and may file the certificate with the Registrar of the Supreme Court.

(2) Where a certificate is filed with the Registrar of the Supreme Court, it is of the same effect and proceedings may be taken on it as if it were a judgment of the Trial Division for the recovery of a debt of the amount stated in the certificate against the person named in it.

1978 c36 s45

48. (1) Where the minister has knowledge that a person is or is about to become indebted to a taxpayer or collector who has not paid or remitted the tax payable under this Act, he or she may demand of that person that the money otherwise payable by him or her to the taxpayer or collector be in whole or in part paid to the minister on account of the taxpayer's or collector's liability under this Act.

(2) The receipt of the minister for money paid by a person in response to a demand made under subsection (1) constitutes a sufficient discharge of the liability of that person to the taxpayer or collector to the extent of the amount set out in the receipt.

(3) A person discharging a liability to a taxpayer or collector after receiving a demand under this section is personally liable to the Crown in an amount that is the lesser of

(a) the liability discharged as between him or her and the taxpayer or collector; and

(b) the liability of the taxpayer or collector for the taxes due under this Act or that have been collected on behalf of the Crown, but not remitted, including interest and penalties.

1978 c36 s46

49. (1) The minister may personally or through an agent levy the amount of taxes that are due, with costs, by distress

(a) of the goods and chattels of the person liable to pay the taxes over to the minister;

(b) of goods and chattels in the possession of that person wherever they are found within the province; or

(c) of goods and chattels found on the premises of that person, the property of or in the possession of another occupant of the premises that would be subject to distress for arrears of rent due to a landlord,

and the costs chargeable shall be those payable as between landlord and tenant.

(2) Where distress is made under subsection (1) for the recovery of taxes,

(a) the minister shall, by advertisement posted up in at least 3 conspicuous public places in the locality where the sale of the property distrained is to be made, give at least 10 days' notice of the time and place of the sale and of the name of the person whose property is to be sold; and

(b) at the time named in the notice, an authorized agent of the minister shall sell at public auction the property distrained or as much of it as may be necessary to satisfy the claim of the minister for taxes, costs and expenses and for the costs and expenses incidental to the distress and sale.

(3) Where the property distrained is sold for more than the amount of taxes, costs and expenses referred to in subsection (2) and a claim for the surplus is not made by another person on the ground that the property sold belonged to him or her or that the person was entitled by lien or other right to the surplus, the surplus shall be paid over to the person in whose possession the property was when the distress was made and his or her receipt shall be taken for it.

(4) Where the property distrained is sold for more than the amount of taxes, costs and expenses referred to in subsection (1) and a claim for the surplus is made by another person other than the person in whose possession the property was when the distress was made, then,

(a) where the claim is not contested, the surplus shall be paid to the claimant and his or her receipt shall be taken for it; or

(b) where the claim is contested, the minister shall retain the surplus until the respective rights of the parties have been determined by action at law or otherwise.

(5) A claim by the minister for distress under this section shall take priority over a claim for distress against goods and chattels for arrears of rent due a landlord no matter which is first in time.

1978 c36 s47; 1983 c77 s8

50. (1) In this section,

(a) "non-resident contractor" means, in the case of a natural person, one who is not living in the province, and in the case of a corporation, a corporation that was not incorporated in the province, and includes a subcontractor of either; and

(b) "principal" means a person who enters into a contract referred to in subsection (2) with a non-resident contractor to whom that subsection applies.

(2) Where a non-resident contractor who enters into a contract with another person under which tangible personal property will be consumed or used in the provinces does not maintain a permanent place of business in the province that has been operated by him or her continuously for a period of 12 months immediately before the date on which the contract was made, the non-resident contractor shall, unless the minister by order otherwise directs,

(a) deposit with the minister a sum equal to 6% of the total amount to be paid to the contractor under the contract; or

(b) provide to the minister a guarantee bond satisfactory to him or her in a penal amount equal to that sum,

to secure payment of the tax imposed in respect of tangible personal property consumed or used under the contract.

(3) A principal shall cause a non-resident contractor with whom he or she enters into a contract described in subsection (2) to deposit the sum or provide the bond required by that subsection; and a principal who fails to do so is personally liable for the payment of the tax in respect of tangible personal property consumed or used under that contract and this Act, with the necessary changes, applies for the purpose of recovering that tax from the principal.

(4) A principal who is liable for the payment of tax under subsection (3) is entitled to be indemnified by a person who ought to have paid the tax and may withhold out of an indebtedness to that person a sum equal to the amount of the tax paid by the principal.

1978 c36 s48

51. The powers conferred by this Act for the recovery of taxes, due or collected under this Act, by action in court and by filing a certificate may be exercised separately, concurrently or cumulatively, and the liability of a person to pay taxes due or to remit taxes collected is not affected by the fact that a fine or penalty has been imposed on or paid by him or her in respect of an offence under this Act.

1978 c36 s49

52. (1) The Lieutenant-Governor in Council may make regulations

(a) prescribing the forms and records to be used by sellers for the purposes of this Act;

(b) prescribing the form of records to be kept by manufacturers and others under this Act;

(c) prescribing the returns and statements to be made by sellers, manufacturers, taxpayers and other persons, the information to be given in those returns and statements, and the time and manner in which they are to be made;

(d) prescribing the method of collection and remittance of the tax and the time and manner in which remittances are to be made and other conditions or requirements affecting the collection or remittances;

(e) providing for the accounting for sums of money collected by sellers and the time and manner of the accounting;

(f) determining the remuneration to be paid to sellers for collecting and forwarding the tax to the minister and the conditions under which the remuneration may be paid, and the time and manner of payment;

(g) exempting from this Act tangible personal property used for a purpose specified in the regulations;

(h) excluding from the application of section 15 the taxed services referred to in subsections (1) and (2) of that section;

(i) exempting generally from the application of section 16 forms of insurance;

(j) exempting a person or class of persons from the payment of the whole or a part of the tax imposed under section 16;

(k) exempting generally from this Act tangible personal property;

(l) exempting a person or class of persons from the payment of the whole or a part of the tax in respect of

(i) tangible personal property generally or generally subject to exceptions, or

(ii) specified tangible personal property or specified tangible personal property that is consumed or used for a specified purpose, or

(iii) tangible personal property generally or generally subject to exceptions that is consumed or used for a specified purpose,

which regulations may be limited as to time or place or both and may be made applicable to the agents, contractors and subcontractors of a person covered by those regulations;

(m) providing for the exemption of specified classes of sellers from the obligation to obtain a registration certificate under this Act, subject to the condition that the exemption is not to relieve a seller from another obligation imposed on him or her by this Act;

(n) providing for the method for refunding, to a retail purchaser the tax or a portion of it paid in respect of tangible personal property that is exempt from tax under this Act, and prescribing the records and materials to be provided upon an application for a refund;

(o) providing for the method of refunding to a retail purchaser an overpayment of tax or a portion of it paid in respect of tangible personal property and prescribing the records and materials to be provided upon application for an overpayment;

(p) providing for the payment to sellers of all or a part of money paid as tax in the case of money paid on behalf of a taxpayer who has defaulted in paying the tax, and prescribing the condition to be attached to the payments;

(q) prescribing the duties of inspectors, officers and other persons appointed or designated under section 39;

(r) generally, to give effect to the purpose of this Act.

(2) Regulations made under paragraph (1)(l) may be made with retroactive effect to a date stated in the regulations, which shall not be more than 12 months before the date of their publication in the Gazette.

1978 c36 s50; 1979 c27 s3; 1982 c21 s8;
1982 c65 s9; 1986 c20 s2; 1987 c36 s4

53. A seller shall not advertise or hold out or state to the public or to a retail purchaser, directly or indirectly, that the tax or a part of it will be assumed or absorbed by the seller or that it will be considered as an element of or included in the price to the retail purchaser or, if added, that it or a part of it will be refunded.

1978 c36 s51

54. An affidavit by an officer of the Department of Finance, sworn or affirmed before a person authorized to take affidavits, that the office has charge of the appropriate records and that after careful examination and search of those records the officer has been unable to find in a given case that a return or remittance required by this Act has been received in the Department of Finance shall be received, in the absence of evidence to the contrary, as proof that the required return or remittance has not been received or paid.

1985 c11 s35

55. (1) Where a seller fails to collect a tax that by this Act he or she is required to collect, the seller is, irrespective of a penalty imposed by this Act, and without the interposition of a court, liable to, and shall pay to the minister, a penalty in an amount equal to the total of

(a) the amount of the loss sustained by the Crown because of the failure of the seller so to collect; and

(b) a sum of 10% of the amount of that loss, unless the minister decides not to require that 10%.

(2) In a case referred to in subsection (1), the minister may make an estimate of the amount of the loss sustained by the Crown and the amount so estimated shall, for the purposes of this Act, be considered to be the actual loss so sustained.

(3) The minister may, by written notice either mailed to or served on the seller or his or her heirs, administrators, executors or assigns, or custodian or trustee in bankruptcy, require the seller to pay to the Crown or otherwise account for the penalty imposed under subsection (1) within 30 days after the date on which the notice is mailed or served.

1978 c36 s53

56. The minister may, irrespective of a penalty imposed by another provision of this Act, and without the interposition of a court,

(a) impose a penalty of 10% of the amount collected or payable under this Act upon a person who fails to pay to the minister a tax collected or payable by that person in the manner and within the time provided by this Act or the regulations; and

(b) impose a penalty of not less than $10 nor more than $100 upon a person who fails to make a return required by this Act or the regulations in the manner and within the time prescribed.

1978 c36 s54

57. (1) On and after a prescribed date, interest shall be levied upon a sum due to be paid under this Act at the rate of 1 1/2% a month or part of a month from the date that the sum should have been paid until the date of payment, and the regulations may provide for a minimum sum upon which that interest will be levied.

(2) Interest shall not be levied under subsection (1) for the month in which the Crown receives payment of the tax.

(3) Where a certificate is issued by the minister under section 47, the interest shall continue to be added to the amount of the tax payable as contained in the certificate.

1978 c36 s55; 1981 c71 s4; 1982 c65 s10

58. Penalties or interest imposed under sections 55 to 57 are recoverable with costs by action in the name of the minister in a court as a debt due to the Crown, and until paid, is a first lien upon the entire assets of the estate of the person owing the sum and has priority over other claims of a person.

1978 c36 s56; 1983 c77 s9

59. Where a person is dissatisfied by a general refusal to issue a registration certificate under section 24, or by the cancellation or suspension of a registration certificate, he or she may apply to the minister for a review; and the minister, after considering the application, shall confirm or alter the decision to refuse, cancel or suspend the registration certificate and shall notify the applicant accordingly.

1978 c36 s57

60. Where a person is dissatisfied with a determination of value made by the minister under this Act, he or she may apply to the minister for a review; and the minister, after considering the application, shall confirm or amend the valuation contained in his or her determination and notify the applicant accordingly.

1978 c36 s58

61. A seller or taxpayer who is dissatisfied with the amount contained in the estimate of tax by the minister under section 43 may, within 30 days of receiving the written notice under section 44, apply to the minister for a review; and the minister, after considering the application, shall confirm, amend or revoke the estimate and notify the seller or taxpayer accordingly.

1978 c36 s59

62. (1) A person who is dissatisfied by a penalty or interest imposed under sections 55 to 57 may, within 30 days of receiving the written notice under those sections, apply to the minister for a review of the amount fixed; and the minister, after considering the application, shall confirm or amend the amount imposed by way of penalty or interest or may, where satisfied that no loss has been sustained by the Crown, revoke the imposition of the penalty or interest and notify the person accordingly.

(2) The amount of penalty or interest fixed in the notification given under this section shall for the purposes of this Act be considered to be the amount fixed by the minister.

1978 c36 s60; 1983 c77 s10

63. Proof that a notification given under section 59, 60, 61 or 62 has been mailed or served is, in the absence of evidence to the contrary, proof that the stated amount is due.

1978 c36 s61

64. (1) A person may appeal to a judge of the Trial Division where

(a) the person feels aggrieved by a review under section 59 relating to a suspension or cancellation of or a refusal to issue a registration certificate;

(b) the person is dissatisfied with a valuation as confirmed or amended by the minister under section 60;

(c) the person disputes the amount of estimated tax confirmed or amended by the minister under section 61, or his or her liability for it; or

(d) the person feels aggrieved by a penalty or interest, as confirmed or amended by the minister under section 62.

(2) In order to appeal under subsection (1), the appellant shall, within 30 days after the notification under section 59, 60, 61 or 62 has been mailed or served on him or her, file in the Registry of the Supreme Court a notice of appeal.

(3) The notice of appeal under subsection (2) shall set out the grounds of the appeal; and a copy of the notice of appeal shall be served on the minister.

(4) The appellant shall, within 14 days after service of a copy of the notice of appeal on the minister under subsection (3), apply to a judge of the Trial Division for the appointment of a day for the hearing of the appeal and shall, not less than 14 days before the day appointed for the hearing, serve upon the minister a written notice of that day.

(5) The appeal and the evidence brought forward by the appellant and the Crown shall be heard by the judge in a summary manner; and the judge shall, after considering the aspects that he or she in his or her discretion considers necessary in the interests of justice decide the appeal

(a) by upholding, reducing or cancelling

(i) the suspension or cancellation of or refusal to issue a registration certificate as confirmed or altered by the minister,

(ii) the valuation as confirmed or amended by the minister,

(iii) the estimate of tax as confirmed or amended by the minister, or

(iv) the penalty or interest as confirmed or amended by the minister; or

(b) by making another decision that the judge considers appropriate in the circumstances.

(6) Papers and documents in the possession of the minister and affecting the matter of the appeal shall be produced before the judge on the hearing of the appeal.

(7) The costs of the appeal are in the discretion of the judge who hears the appeal and he or she may make an order respecting costs in favour of or against the Crown and may fix the amount of them.

1978 c36 s62; 1986 c42 Sch B

65. (1) An appeal may be taken to the Court of Appeal from a decision of a judge of the Trial Division upon a point of law raised upon the hearing before that judge.

(2) The rules governing appeals to the Court of Appeal from a decision of a judge of the Trial Division apply to appeals under this section.

1978 c36 s63; 1986 c42 Sch B

66. An estimate made by the minister and confirmed or amended under section 43 shall not be varied or disallowed because of an irregularity, informality, omission or error on the part of a person in the observation of a directory provision of this Act or the regulations up to the date of the issuing of the notice of the estimate.

1978 c36 s64

67. The giving of a notice of appeal by a person or a delay in the hearing of that appeal does not

(a) affect

(i) the due date of a tax or part of it under this Act that is the subject-matter of an appeal,

(ii) the interest or penalties provided by this Act in respect of a tax as due, or

(iii) a liability for payment of a tax provided by this Act; or

(b) delay the collection of a tax,

but where the tax is set aside or reduced on appeal, the minister shall refund to the person entitled to it the excess of tax paid and of an additional penalty or interest paid on it.

1978 c36 s65

68. (1) The minister, where he or she considers it appropriate to do so, may remit a penalty or interest imposed under sections 55 to 57.

(2) A remission under this section may be total or partial, conditional or unconditional, and may be granted whether before or after or pending a suit or proceeding for the recovery of a penalty or interest and before or after a payment of it has been made or enforced by process or execution.

1978 c36 s66

69. Subsections 19(3) and (4) of the Financial Administration Act apply, with the necessary changes, to remissions under section 68.

1978 c36 s67

70. (1) Without affecting subsection 21(2) of the Interpretation Act, the Lieutenant-Governor in Council may assign to an officer of the Department of Finance designated by him or her the performance of the duties and the exercise of the powers imposed or conferred on the minister under this Act.

(2) An officer to whom the performance of the duties or the exercise of the powers is assigned under subsection (1) shall perform the duties and may exercise the powers as if they were imposed or conferred on him or her under this Act.

(3) This section does not apply to a power of review conferred upon the minister by section 59, 60, 61 or 62.

1978 c36 s68

71. Where a person has been issued a registration certificate under this Act he or she shall be presumed for the purposes of this Act or the regulations to be a seller within the meaning of this Act until the registration certificate has been cancelled under this Act.

1978 c36 s69

72. In a court proceeding taken under this Act, the Crown may, in support of its case, produce copies of computer print-outs certified as correct copies by the Comptroller General or his or her designate.

1983 c77 s11

73. (1) A seller is guilty of an offence who offers for sale or sells tangible personal property at a retail sale in the province at a time when he or she does not hold a registration certificate authorizing the seller to sell property by retail sale in the place of business where the property was offered for sale or sold.

(2) Subsection (1) does not apply to a seller who is exempt under the regulations from the obligation to obtain a registration certificate under this Act.

1978 c36 s70; 1982 c65 s11; 1983 c77 s12

74. A person who

(a) uses the number of a registration certificate that has been cancelled; or

(b) quotes the number of a registration certificate that has been issued to another person,

is guilty of an offence.

1983 c77 s12

75. A person is guilty of an offence who

(a) interferes with or hinders a person conducting an inspection, examination or search under this Act;

(b) refuses to answer questions put to him or her in accordance with section 40 or 41; or

(c) fails to produce for inspection books of account, records, documents or financial statements including balance sheets and profit and loss statements or tangible personal property in his or her possession or under the person's control that he or she is requested to produce for inspection.

1978 c36 s71; 1982 c65 s12

76. (1) A person is guilty of an offence who makes a false statement in a form or return completed or made under this Act or the regulations.

(2) A false statement referred to in subsection (1) that relates to a separate sale or transaction constitutes a separate offence.

1978 c36 s72

77. A person is guilty of an offence who

(a) fails to comply with a requirement or obligation imposed on him or her by this Act or the regulations; or

(b) otherwise contravenes this Act or the regulations,

and every failure or contravention that relates to a separate sale or transaction constitutes a separate offence.

1978 c36 s73

78. (1) A person who is guilty of an offence under this Act or the regulations is liable on summary conviction

(a) for a 1st offence to a fine of not less than $200 nor more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment;

(b) for a 2nd offence to a fine of not less than $500 nor more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment; and

(c) for a 3rd or subsequent offence to a fine of not less than $1,000 nor more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment.

(2) In addition to the penalties imposed under subsection (1) a court shall order the person found guilty to pay the tax due under this Act and in default of the payment of the tax, the court shall order that person imprisoned for a term of not less than 1 month or more than 6 months.

(3) Sections 736 and 737 of the Criminal Code shall not be applied in disposing of a complaint made or in imposing punishment for an offence under this Act.

1982 c65 s13

79. Where a corporation is guilty of an offence under this Act and an officer, director or agent of the corporation directed, authorized, or participated in the commission of the offence, that officer, director or agent is a party to and guilty of the offence and is liable on summary conviction to the punishment provided for that offence whether or not the corporation has been prosecuted or convicted.

1978 c36 s75; 1983 c77 s13

80. (1) In addition to the penalties imposed under section 78, where a corporation is guilty of an offence for failing to pay the tax due by the corporation under this Act or the regulations and an officer, director or agent of that corporation has been convicted of directing, authorizing or participating in the commission of that offence, the court shall order the officer, director or agent to pay the tax for which the corporation has been convicted of failing to pay and in default of the payment of that tax, the court shall order that officer, director or agent imprisoned for a term of not less than 1 month or more than 6 months.

(2) In a prosecution under this section, an officer, director or agent of a corporation is not liable to pay the tax for which the corporation has been convicted of failing to pay under subsection (1) where that officer, director or agent shows that he or she exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.

(3) Notwithstanding section 82, an action or proceedings to recover an amount payable by an officer, director or agent of a corporation under this section shall not be started more than 4 years after he or she last stopped being an officer, director or agent of that corporation.

1983 c77 s14

81. In addition to another penalty provided in this Act, the minister may apply to a judge of the Trial Division for an injunction against a seller

(a) whose certificate of registration was suspended or cancelled under section 24; or

(b) who applied for but was refused a certificate of registration under section 24, and

who continues to sell tangible personal property taxable under this Act, ordering him or her to stop selling the tangible personal property until the seller has fulfilled his or her obligations under this Act and the regulations and has paid the costs of the application.

1983 c77 s14

82. A complaint may be made and proceedings may be taken on it in respect of an offence under this Act or the regulations without a limitation of time.

1978 c36 s76

PART II
HIBERNIA DEVELOPMENT PROJECT
Back to Top Interpretation

83. (1) In this Part

(a) "acquisition" includes purchasing, leasing or bringing into the province and all derivatives of this term;

(b) "arm's length" means arm's length as defined by section 251 of the Income Tax Act (Canada) as judicially interpreted, however, in connection with an acquisition, sale or other transaction, the following is not considered to be at arm's length:

(i) an acquisition, sale or transaction involving a project owner or an affiliate of a project owner and 1 or more of the project owners and an affiliate of a project owner,

(ii) where the consideration is payable otherwise than solely in cash,

(iii) the contract price is not the sole consideration,

(iv) the contract terms are affected by a commercial relationship, other than that created by the acquisition, sale or other transaction, among the parties or anyone not otherwise at arm's length with those parties, or

(v) other circumstances that the minister declares, after discussion with the project owners, not to be at arm's length;

(c) "board" means the Canada-Newfoundland Offshore Petroleum Board established by the joint operation of the Federal Accord Act and the Provincial Accord Act;

(d) "capital equipment" means equipment which has an expected useful life of more than 1 year and a value of more than $1,000;

(e) "designated person" means a project owner, project operator, major contractor or subcontractor;

(f) "development plan" means the Hibernia Development Plan as approved by the board in its decision 86-01 including all conditions and sub-plans provided for by the board and including all amendments to it which

(i) do not involve project eligible capital costs to implement, or

(ii) do involve project eligible capital costs to implement that are approved in advance by the province;

(g) "eligible capital equipment" means capital equipment which is an eligible item;

(h) "eligible item" means

(i) capital equipment which had originally been acquired for consumption and use outside the province, but is subsequently brought into the province for consumption or use on the project by the project owner or by a designated person having a project contract,

(ii) tangible personal property, service or other item acquired for consumption or use on the project

(A) the cost of which is a project eligible cost to the project owner or project operator, or

(B) which is acquired by a designated person other than a project owner or project operator and is directly attributable to a project contract,

and, but for this Part, would be subject to tax at the general tax rate, excluding tangible personal property which is to be used on the project for less than 10% of its total use as calculated by multiplying the value obtained in clause 90(2)(b)(i)(A) by the value obtained in clause 90(2)(b)(i)(B);

(i) "Federal Accord Act" means the Canada-Newfoundland Atlantic Accord Implementation Act (Canada);

(j) "general tax rate" means applicable rates of tax imposed under Part I;

(k) "joint account" means the account identified in the royalty agreement showing the charges paid and credits received as a result of operations conducted for the project and which are shared by the project owners in accordance with their working interests or a replacement to the joint account made in accordance with the royalty agreement;

(l) "major contractor" means a person, partnership or joint venture who is awarded a project contract having consideration greater than or equal to $100,000,000 or a person designated by the minister to be a major contractor;

(m) "personal property" includes a gravity based structure;

(n) "production licence" means that production licence dated March 21, 1990, numbered 1001 and issued by the board to the project owners, and includes all replacements of it, substitutions for it, amendments and successors to it;

(o) "production start-up" means the day upon which cumulative crude oil production under the production licence to the account of all project owners transferred at the loading point exceeds 3,000,000 barrels;

(p) "project" means both the resource project and the tanker project;

(q) "project capital program" means the conduct with respect to the resource project of

(i) purchasing, leasing, constructing, replacing, assembling, towing out, commissioning, abandoning, decommissioning, installing, mating and seabed developing of property, plant and equipment,

(ii) drilling, testing, evaluating, completing, recompleting in a different zone and equipping of production, injection, observation and disposal wells,

(iii) engineering and design, and

(iv) research and development,

and with respect to the tanker project

(v) purchasing, leasing, constructing, replacing, commissioning, decommissioning of property, plant and equipment, including marine tankers,

(vi) engineering and design, and

(vii) research and development;

(r) "project contract" means a contract for work on the project the cost of which is a charge to the joint account;

(s) "project eligible capital cost" means a project eligible cost that relates to a project capital program;

(t) "project eligible cost" means an actual cash payment which is

(i) directly attributable to the project,

(ii) reasonable in relation to the circumstances under which it is incurred,

(iii) charged to the joint account, and

(iv) incurred after June 30, 1988,

but notwithstanding the preceding, a cost will not qualify as a project eligible cost when it is

(v) a claim for loss, costs, liability or damage based in tort with respect to a 3rd party, including a project owner who is a supplier to the project,

(vi) a cost incurred and damages paid as a result of a negligent act or omission or as a result of a wilfully, damaging act,

(vii) a cost incurred and a fine paid as a result of

(A) strict liability imposed by, or

(B) an act or omission which is a breach of

laws, rules, regulations, permits, licences, orders or other directives of a government, government agency, the board or a court, and

(viii) an amount on account of, instead of, in satisfaction for or in relation to the preceding;

(u) "project operator" means Hibernia Management and Development Company Limited, a company incorporated under the laws of Canada, registered to do business in the province and the project tanker operator;

(v) "project owner" means a person having a working interest in the project;

(w) "project tax rate" means 0% in the case of an eligible item which is consumed or used on a project capital program and 4% in the case of an eligible item which is consumed or used on the project, other than a project capital program;

(x) "Provincial Accord Act" means the Canada-Newfoundland Atlantic Accord Implementation Newfoundland Act;

(y) "purchase exemption certificate" means the certificate issued under section 88;

(z) "resource project" means that portion of the development project described in the development plan involved in the development and production of crude oil to the point where crude oil is loaded into marine tankers, but not beyond;

(aa) "royalty agreement" means the royalty agreement made or to be made between the Crown in right of the province and Mobil Oil Canada Properties, Chevron Canada Resources, Petro-Canada Hibernia Partnership, Gulf Canada Resources Limited, Mobil Oil Canada Ltd., Chevron Canada Resources Limited and Petro-Canada Inc. under the Department of Mines and Energy Act and includes all amendments to it and replacements of the royalty agreement;

(bb) "subcontractor" means a person, partnership, or joint venture which is awarded a project contract with the project owners, the project operator, a major contractor or another subcontractor, the consideration for which is less than $100,000,000;

(cc) "tanker project" means that portion of the development project described in the development plan involved in the transportation of crude oil produced under the production licence and shall extend to, but not include, the point where the marine tanker discharges the crude oil; and

(dd) "working interest" means working interest as defined in section 166 of the Federal Accord Act.

(2) An expression which is not defined in this Act or the regulations but which is defined in the royalty agreement shall have a similar meaning as in the royalty agreement, unless the context indicates otherwise.

(3) The purpose of this Part is to provide an exemption or a reduced tax rate for the project but only to the extent specifically stated in this Part.

1990 c10 s2; 1990 c23 s12

84. A designated person is exempt from tax with respect to an eligible item acquired for consumption or use on a project capital program.

1990 c10 s2

85. A designated person shall pay tax at the rate of 4% with respect to an eligible item acquired for consumption or use on the project, other than a project capital program, and shall not pay tax at the general tax rate upon these items.

1990 c10 s2

86. (1) Notwithstanding sections 84 and 85, a designated person shall pay tax at the general tax rate at the time of acquisition of an eligible item, unless the designated person provides the seller with a purchase exemption certificate.

(2) A designated person who pays tax at the general tax rate at the time of acquisition of an eligible item may apply to the minister for a refund as calculated under section 90.

(3) A designated person who provides a seller with a purchase exemption certificate at the time of acquisition of an eligible item is not required to pay tax at that time but shall account for and remit tax due under section 85, or otherwise, in a separate return for each calendar month and shall file the returns with the minister not later than 20 days after the end of the month in respect of which the return is made, together with payment of the tax payable by the designated person.

(4) A designated person who has been issued a purchase exemption certificate shall file a return with the minister monthly, whether or not tax is due.

(5) Notwithstanding subsections (3) and (4), the minister may alter or vary the manner and method in which returns are to be filed by a designated person.

1990 c10 s2

87. (1) Notwithstanding section 86, the minister may order a designated person to report that person's acquisition of eligible items during a period specified in the order, and the person so ordered shall file the report in a return to the minister together with payment of tax due upon the acquisitions reported, within the period that the minister may specify.

(2) A designated person who is required to file a return under the regulations made under Part I may consolidate that return with the return required under this Part, where appropriate.

1990 c10 s2

88. (1) A purchase exemption certificate, as prescribed, may be issued by the minister to a designated person upon application, provided that the minister is satisfied that the applicant is not in arrears of tax due.

(2) The minister may, before issuing a purchase exemption certificate, require the applicant to provide information that the minister considers relevant.

(3) A purchase exemption certificate shall be valid for the life of the applicant's contract with the project, or in the case of a project owner or project operator, for the life of the project.

(4) Notwithstanding subsection (3), a purchase exemption certificate may be suspended or cancelled by the minister where

(a) the minister has taken an action for the recovery of tax or instituted a prosecution for an offence under this Act against the applicant, its officers, directors or agents and an amount of tax due by the applicant remains outstanding;

(b) the applicant's contract on the project has terminated; or

and the minister shall deliver written notice of the suspension or cancellation stating the reasons to the applicant immediately.

1990 c10 s2

89. Notwithstanding section 86, subcontractors shall pay the tax at the general tax rate at the time of acquisition of eligible capital equipment and may apply for a refund of tax in accordance with section 90.

1990 c10 s2

90. (1) A designated person who pays tax at the general tax rate at the time of acquisition of an eligible item intended for exclusive consumption or use on the project may apply to the minister for a refund, which shall be the difference between the general tax rate and the project tax rate, times the purchase price.

(2) A designated person who pays tax at the time of acquisition of eligible capital equipment intended for consumption or use both on the project and for other purposes may apply to the minister for a refund which shall be the difference between

(a) the amount of tax paid; and

(b) the product of

(i) the difference between 1.0 and the product of

(A) the quotient obtained by dividing use on the project by use for all purposes during the life of the project contract, and

(B) the quotient obtained by dividing the number of months duration of the project contract by the estimated number of months of total useful life of the eligible capital equipment provided the quotient shall in no case be greater than 1.0,

(ii) purchase price, and

(iii) the general tax rate less the project tax rate.

(3) Where a designated person estimates a factor affecting the refund calculation set out in subsection (2), and submits it to the minister, the minister shall not be bound by the estimate.

(4) At the end of the project contract or each 3 year period from the date of beginning of the project contract, whichever is earlier, a designated person shall file a report with the minister comparing the actual consumption or use of all of his or her eligible capital equipment on the project acquired during that period with the consumption or use estimated under subsection (2) and, in a case where tax payable has been underestimated, shall remit immediately the difference between the tax due on actual consumption or use and the amount of tax paid to the minister.

(5) Where a designated person has underestimated the tax payable under this section, interest on the amount of the difference between the tax due and the tax paid shall be charged from the date of issue of the refund under this section to the date of the payment of the difference.

(6) Where the minister is satisfied that a designated person has overestimated the tax payable under this section, the minister shall refund the amount of tax overpaid.

(7) For the purpose of this section, as it applies to the project owner and the project operator, the term "project contract" shall be the time remaining on the project.

1990 c10 s2

91. Notwithstanding sections 84 and 85, where a designated person acquires, without payment of tax, an eligible item for consumption or use both on the project and for other purposes, that person shall account for and shall remit tax in accordance with the formula set out in paragraph 90(2)(b) and subsections 90(3), (4), (5), (6) and (7) shall apply with the necessary changes.

1990 c10 s2

92. (1) Where eligible capital equipment which was acquired for consumption or use on the project is removed temporarily from the project for consumption or use outside the project, tax shall be payable by the consumer, unless use by that consumer is otherwise exempted under this Act, at the general tax rate upon the fair rental rate for the period of the consumption or use, provided that no tax shall be payable for temporary consumption or use in relation to a public emergency for which no remuneration is charged by the owner.

(2) For the purposes of subsection (1), fair rental rate may be determined by the minister in accordance with section 8.

1990 c10 s2

93. Notwithstanding other provisions in this Part, a designated person who has acquired an eligible item upon which the project tax rate has been applied

(a) shall report in writing immediately to the minister a change in the taxable consumption or use of the eligible item on the project;

(b) shall report all information required by the minister with respect to the taxable change in consumption or use;

(c) shall recalculate the amount of tax that should have been paid where the actual use had been known at the time of acquisition in accordance with the formula set out in paragraph 90(2)(b) and subsections 90(4), (5), (6) and (7) shall apply with the necessary changes; and

(d) shall pay additional tax or may apply to the minister for a refund

and where the minister is satisfied that the change in consumption or use could not reasonably have been foreseen and that the designated person has complied with this section expeditiously, no interest or penalties shall apply.

1990 c10 s2

94. Where an eligible item is removed from the project and is subsequently consumed or used off the project for purposes that are not otherwise exempted under this Act by a person not operating at arm's length with the owner, tax shall be paid by the consumer upon the product of

(a) fair value of the eligible item at the time of removal from the project; and

(b) the general tax rate minus the project tax rate.

1990 c10 s2

95. A person who acquires from a designated person tangible personal property which had been an eligible item to which the project tax rate applies, who, but for this section, would qualify for exemption under section 26 or 26.1 of the regulations made under Part I, shall pay tax equal to the product of

(a) fair value of the eligible item at the time of acquisition; and

(b) the general tax rate minus the project tax rate.

1990 c10 s2

96. The provisions of Part I with respect to interest and penalties shall not apply when remittances have been inaccurately allocated between this Act and the Federal Accord Act, provided that a reasonable effort has been made to allocate the remittances properly.

1990 c10 s2

97. The allocation of eligible items to capital or operating programs shall be determined initially by the project operator, having regard to the description of the project capital program and, where necessary, to the general practices of the project operator, in applying Canadian generally accepted accounting principles, but the allocation for purposes of this Part shall be consistent with the allocation made for purposes of the royalty agreement.

1990 c10 s2

98. Notwithstanding other provisions of this Part, all project eligible costs incurred and eligible items acquired before production start-up shall be project eligible capital costs.

1990 c10 s2

99. (1) A repair and maintenance cost of an asset of the project shall be considered a project eligible capital cost where the cost in a period exceeds 50% of the installed cost of an equivalent new asset.

(2) For the purposes only of this section, an "asset" is a unit of plant or equipment that either performs a complete operating function or results in an increase in the productive capacity, efficiency or life of the unit.

1990 c10 s2

100. (1) A cost relative to an independent operation shall not be a project eligible cost unless approved in writing in advance by the province.

(2) For the purposes only of this section, an "independent operation" is an operation relative to the project which is conducted on behalf of less than all of the project owners.

1990 c10 s2

101. The sale of an interest in an eligible item of the project in conjunction with the sale of a corresponding working interest in the production licence shall be exempt from tax.

1990 c10 s2

102. (1) Where a document is inspected, examined, obtained or provided under section 41 for the purposes of enforcement of this Part, the person by whom it is inspected, examined or obtained or to whom it is provided or a person authorized by the minister may make 1 or more copies of it and a document purporting to be certified by the person by whom it is inspected, examined or obtained or to whom it was provided or by a person authorized by the minister to be a copy is evidence of the nature and content of the original document and has the same probative force as the original document would have if it had been proven in the ordinary way.

(2) After a document has been certified under this section it shall be returned to the person from whom it was received.

1990 c10 s2

103. The Lieutenant-Governor in Council may make regulations

(a) prescribing the style and content of a form, certificate, application, report, return or notice required by this Part;

(b) prescribing the style and method of a comparison, calculation, estimate or accounting required by this Part;

(d) prescribing the estimated months of total useful life of eligible capital equipment or a class of eligible capital equipment; and

(e) generally, to give effect to the purpose of this Part.

1990 c10 s2